State releases hundreds of recalled pot batches after they tested pesticide-free

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Some Colorado pot businesses, including The Farm, Caregivers for Life, Back to the Garden and Fat Face Farms, had their once-recalled marijuana released after clearing Department of Agriculture tests

Hundreds of batches of marijuana that months ago tested positive for banned pesticides have been re-tested and released to Colorado pot shops, The Cannabist has learned.

The cannabis in question had been on administrative hold since earlier this year. But appeals to the Colorado Department of Agriculture prompted the agency to re-sample and re-test the marijuana, and much of it — including cannabis grown by Colorado shops The Farm, Caregivers for Life, Back to the Garden and wholesale grower Fat Face Farms — tested clean and was cleared to return to the marketplace.

The state’s releases, which saved at least one of the involved businesses from potential bankruptcy, were coordinated by the same agencies charged by Gov. John Hickenlooper’s executive order to “deem all marijuana contaminated by an off-label pesticide a risk to public health” and “a threat to public safety.”

The release of the marijuana — including 592 unprocessed harvest batches, 34 pounds of dried cannabis and 240 plants, according to the state Marijuana Enforcement Division — was executed with the executive order in mind, said Ron Kammerzell, senior director of enforcement at the Colorado Department of Revenue, which oversees the MED.

“The licensees are still subject to violations of the Pesticide Applicators’ Act on the Agriculture side,” said Kammerzell. “They do receive a cease-and-desist order from Agriculture, and they still could be subject to administrative actions by the Department of Agriculture.

“Our responsibility is to make sure the marijuana is safe for the consumer and it’s not contaminated by pesticides, and in this case, it meets with the spirit of the executive order in that we’re working cooperatively with Agriculture and other state departments. But the number one priority is making sure that pesticide-contaminated products aren’t going out into commerce.”

Aside from cease-and-desist orders, the Department of Agriculture has not yet issued other violations to these businesses, a CDA representative said.

Other investigations into marijuana businesses’ recalled pot are being conducted by the state agencies, but representatives couldn’t comment on the active investigations that may or may not result in the release of more cannabis.

One of the business owners affected by the state’s recent release is Caregivers for Life’s Sally Bright, who says she lost more than $800,000 — including $500,000 in product she destroyed — because of the recalls and holds, which caused her shop’s business to “drop down to a quarter of what it was before this happened.”

“It’ll take about a year and a half to recover — getting our genetics back, growing our product again, rebuilding our name again and hopefully our customers will come back,” said Bright, who is currently selling product at the “firesale prices” of $100 per ounce for flower and $20 a gram for wax, both medically and recreationally, in hopes of bringing customers back in. “And when they gave us the settlement agreement, we had to sign off all of our rights to sue them for any product that may have wrongfully been destroyed before they’d re-test our products.”

A Department of Revenue document provided to The Cannabist says licensees signing the stipulation voluntarily waive “the right to appeal this order” and “agree that upon execution of this order, no subsequent action, claim or assertion shall be maintained by licensees arising from or relating in any way to the matters described in this order.”

When Caregivers for Life had product recalled by the city of Denver in January, the pot shop published a statement saying some of its “suppliers let us down and provided us trim that was not up to current standards.” When the state followed up and placed an administrative hold on additional Caregivers for Life cannabis products on April 20 (of all days), the shop’s attorney blamed the hot tests on “historical residues” from the cultivation’s heating and air-conditioning vents.

CDA experts recently told The Cannabist such a scenario wasn’t possible in their estimation, but Caregivers for Life attorney Sean McAllister still holds to that argument.

“The numbers we saw on those initial tests were so low that we independently sampled the HVACs and humidifiers in a number of cases and saw higher numbers than we saw in the plants,” said McAllister. “We could have gone to court but instead we tried to work things out. Ultimately we got the right results, but it took four months after the March test results were returned to resolve this, and that was upsetting from the industry’s perspective because they almost bankrupted these businesses.”

“There is no set ‘standard’ time for the investigation to be completed and a final enforcement determination to be issued,” Scott said via e-mail. “In addition, with multiple agencies involved, both CDA and DOR must complete each of their separate investigations and enforcement processes, which will add additional time to each case resolution.”

Before the re-testing process could begin, state agencies and the impacted cannabis businesses reached the agreement “that if the test results come back negative, meaning no pesticides are detected, we agree to release the hold of the products in question,” said the DOR’s Kammerzell. “If the test results come back positive, they agree to destroy the products that are on administrative hold. It’s a mutual agreement to resolve the administrative cases between the state licensing authority and the license that’s affected.”

In total, Denver’s Department of Environmental Health has issued 26 recalls of marijuana and pot products since September 2015, when the city stepped up inspections of cannabis products; The Colorado Marijuana Enforcement Division has also issued 26 recalls in the form of administrative holds since February.

There has been one other release since September — 28,000 packages of edibles were cleared by the city of Denver in February. No new marijuana recalls have been announced by the city or the state since June 21.

There haven’t been any pesticide-related illnesses reported by cannabis users to local poison control centers.

Another business that appealed its hold and saw product released back into the market is Boulder pot shop The Farm, whose recall was unlike most of the other businesses.

When The Farm’s product was recalled in March, its management said it was a victim of a mix-up involving the once-allowed Guardian brand pesticide, which failed to include one of its active ingredients on its product label. Guardian, made by Illinois-based All In Enterprises, identified itself as 100 percent natural with ingredients ranging from cinnamon oil to citric acid, but an Oregon cannabis testing facility found it also contained abamectin — which is a mixture of avermectins and is banned for use on cannabis in Oregon, Colorado and others states.

The Guardian news shocked legal cannabis growers attempting to adhere to ever-changing state guidelines as well as the agencies regulating the marijuana cultivators. In late-January, the Colorado Department of Agriculture pulled Guardian from its list of allowable pesticides for use on cannabis, and the Oregon Department of Agriculture did the same in early February.

The Farm’s interim CEO, Devin Liles, told The Cannabist this week he and his colleagues “are very grateful that critical thinking, reason, and cooperation have led to the truth, which is that our product was never adulterated with the banned pesticide avermectin. Ultimately, our best practice of never spraying anything on our flowers is what saved us from the Guardian scandal.

“It is unconscionable what the makers of Guardian did in putting avermectin in a product they sold as 100 percent natural. And it is unfortunate that Guardian ended up on the state’s approved pesticide list. We never would have used it otherwise. Our entire staff takes great pride in growing and selling super-clean, pesticide-free product and playing by the rules. So it was tough to think that our stellar reputation had been tarnished by this scandal. But we knew all along that it couldn’t possibly be in the final product because we knew we had only sprayed Guardian in the vegetative stage of growth prior to flower formation.

“And we knew that avermectin does not travel through the vascular tissue of the plant. So there was no way it could end up in the flower and sweet leaf. The original tests came back positive because the sampling procedure mixed fan leaf, which had been sprayed weeks prior, with flower. What we compelled the state to do was allow a re-test of the flower only. And the results came back clean. So we feel vindicated and sincerely very appreciative that rational minds prevailed at no less than four government agencies!”

At the core of legal cannabis’ pesticide problem in Colorado is the state’s lack of a pesticide certification for marijuana testing labs. So while cannabis testing facilities are certified by the state’s health department to test for potency and contaminants, the Colorado Department of Public Health and Environment is still working with other agencies, labs, and industry to develop proficiency standards and testing certification requirements for pesticide tests.

“Once we have mandatory testing for pesticides, that will be a game-changer in terms of making sure that we’re minimizing these types of contaminations,” said DOR’s Kammerzell. “Pesticides are a challenging area for testing, so we want to make sure we do it right and properly.”

But when will the state’s pesticide testing certification be ready for implementation?

“I would like to hope that we’ll have it done sometime in 2017,” said Kammerzell. “That’s our plan.”

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